This is a blog by a former CEO of a large Boston hospital to share thoughts about negotiation theory and practice, leadership training and mentoring, and teaching.

Friday, August 19, 2011

A simple proposal on malpractice

An article this week in the New England Journal of Medicine concludes that there is a high likelihood that most doctors will face a malpractice lawsuit at some point in their careers. Here's the chart that accompanies the article, showing the percentage of physicians annually, by specialty, who are sued.

Not all suits, indeed a minority, result in verdicts against the doctors. Nonetheless, the disruption to a doctor's life during a lawsuit is substantial, taking him or her away from care of patients for weeks. And, as I have discussed, the shame that accompanies these lawsuits -- even when not warranted -- is a searing experience.

Given the power of the litigation bar in state legislatures and Congress, and given the legitimate rights of people to sue for damages when real harm has been done, the likelihood of fundamental change to our system of malpractice law is unlikely to change. Indeed, other countries -- like Israel -- are seeing a rise in their own malpractice experience as the plaintiff bar learns from the American experience.

If we try to insist on a global change in malpractice laws, we will get nowhere. It is better to make incremental changes that are in the interest of both plaintiffs and defendants.

In that light, there are ways to improve the flow of these cases that preserve the rights of both sides. The most sensible and politically feasible I have seen are designed to preclude or quickly eliminate unfounded and frivolous claims.

My favorite is a requirement to impose a notice or "cooling off" period. This would require a potential plaintiff to tell the targeted doctor, nurse, or hospital of an intention to sue. During that waiting period, there would be a greater chance that the parties would resolve their differences. This raises the possibility of avoiding a formal lawsuit and saving the costs and lengthy time commitment by all concerned.

The advantage of this proposal is that all rights are preserved for all parties. The plaintiff's bar should not object (versus, for example, proposals to limit damages) in that all the other provisions of the law remain in effect. Indeed, under this approach, plaintiff attorneys face a higher likelihood of avoiding steep up-front costs associated with handling cases, costs that they must bankroll out of their firms' balance sheets on a contingent basis.

Mandatory mediation efforts might help, but in most cases the damage is done and the need for revenge established. Prevention efforts are probably a better return, e.g., better interpersonal skills.

A smaller step that is more feasible is effective sanctions for suing those not involved. There is unnecessary trauma and expense to doctors and staff when they get caught in fishing expedition suits that name everyone, then followed by dropping cases against all but the few that could actually have been the cause. (One extreme recent example of this was suing a drug company for a drug related injury. Only problem was that the drug company started producing that drug a year after the injury occurred. Case dismissed after much wasted expense.)

I believe this issue also feeds into the disclosure issue, and becomes a vicious circle. It is known that many lawsuits arise from anger/revenge/dissatisfaction with attitudes rather than an actual error. Drs/hospitals do not disclose errors for fear of a lawsuit. The patient is angered due to the appearance of a cover-up and sues to obtain information as much as for revenge/$$. If disclosure were mandated or at least practiced competently with some protections in place regarding subsequent lawsuits, perhaps the problem could be mitigated somewhat.

A big possible problem with your solution could be that these intention to sue letters will be generated with no real intent on the part of the lawyer to carry through. One could see unscrupulous attorneys sendiing out intent to sue letters for every potential client in the hopes of exacting settlements with little cost. It is precisely this increased costs to attorneys that holds back many of the more frivolous suits, and if you make the process almost cost free for attorneys, there will be those that will abuse the system.

From a physicians standpoint, we will be more disheartened and likely to spend even more time talking to our insurers when we start receiving such threats of litigation.

What we need is loser pays and compensation for our lost time and income when a suit is brought. After all, I see many physicians feasting as expert witnesses who are making alot of money off this system, while the poor doctor being sued has to sit through depositions and court proceedings. Meritorious suits are likely to be settled quickly by insurers for this reason, but those that are questionable should bear equal financial risk for the time and trouble caused.

It would be great if the parties could resolve these issues between themselves instead of engaging lawyers, but is that realistic? In many cases, the plaintiff sues because the Hospital has withheld accurate information and medical records about a loved one (or themselves) and failed to offer help to those who has been harmed. With complete disclosure, honesty and transparency, and offers of support( both emotional and financial),my guess is that most mal practice cases could be kept out of courtroom. Oh, and one more thing.....Hospitals need to stop billing patients that they have harmed, for the care that was necessary because of avoidable infection and/or medical errors. That, to me, that is one of the most ridiculous and unfair things that the industry does....it is enraging. I know a man in FL who has been sued by his hospital for refusing to pay the bill for care he needed after his hospital gave him post operative MRSA, that he nearly died of and continues to suffer from.

Loser pays is great ... if your goal is to eliminate all malpractice suits, even those when there was actually malpractice.

How likely is it that a low income or even middle class patient who was injured by malpractice has the resources to run the risk of bringing suit and losing and having to pay all the defense costs of a physician with a deep pockets insurance company which would spare no expense to win the case?

Injured patients would simply be priced out of having any chance of recovering legitimate damages for malpractice. They'd be bankrupted if they lost, so they'd never bring the case. But that is probably what the loser pays advocates want . . . protection from being sued even when they caused real harm.

Love your blog; horrible MP idea. I lived for years in a high risk state and was sued SIX times. Five were dismissed, four of the five prior to me giving a deposition. In 2 of the 6 I did not even have a doctor/ patient relationship. One went to trial. I won, unanimous verdict, the jury was out about 45 min, after a 2 week trial and over 100K in expenses to defend me. In other words, six suits, all six frivolous. All the ones dismissed cost between 7 and 20k each to get me dismissed. One was dismissed 2 days prior to trial. First the plaintiff's lawyer demanded 100K, then 50, then a week prior 5K, when they saw I would not budge, they gave up. In a few of the cases nursing homes, LTACs or hospitals were sued. They cave in order to keep their names out of the parer. In my case that went to trial the plaintiff's attorney talked a naive plantiff into spending a large part of her settlement with a hospital and LTAC going after me. In other words her unethical lawyer ended up with even more of his clients award, (which the client did not deserve in the first place) playing on the combination of his plaintiff's greed and stupidity.

I'm not a perfect doctor, it is just that in all of these 6 cases I followed the standard of care. I am lucky; I had a good lawyer, a insurance carrier who stuck with me, and enough balls to suffer through stress and sleepless nights in order to get the right outcome. Many docs, and almost all facilities I know of don't; they talk a settlement down as low as they can and then just cry uncle.

So why is your idea horrible? It lowers the threshold for bringing MP suits, with no risk to plaintiffs of their bar. It is not a "cooling off" period; it is an intimidation period.

Any real solution involves, in my opinion, 2 important changes. First, plaintiffs and their bar have to carry some risk, not just their investment risk, but also a risk that a judge will require plaintiffs to pay defendants costs if a suit is deemed frivolous. Here is why that is essential. I was sued, tagged onto a suit against a surgeon. The incremental cost of suing me was zero, but it cost my MP carrier 8K to get me out of the case. I had no relationship with the patient; my name was on the chart incorrectly. It was easier for the plaintiff's lawyer to name me in the suit that to actually do his homework and see they had no standing to sue me.

Second, all suits should require professional mediation, with mediators having the right to throw cases out prior to defendants and their lawyers even having to be involved, with plaintiff's paying mediation fee.

Frankly, I think that the fact that the plaintiff's bar has so much political clout and uses it in a way that literally costs our country billions per year in defensive medicine that also results in lower quality health care is a national crime. I am disappointed that in part you buy into it.

Once someone states an intention to sue, the relationship with the physician would be inexorably altered and would eliminate a possibility of rational, calm and honest discussion leading to resolution.